Suing Your Rabbi: Clergy Malpractice in Jewish Law
Rabbi Mark Dratch
C. Eric Funston, "Made Out of a Whole Cloth? A Constitutional Analysis of the
Clergy Malpractice Concept," 19 Cal. West L.R. 508-509 (Spring 1983).
Nally v. Grace Community Church of the Valley, No. NCC 15668-B, L.A.
County Super. Ct, Cal. filed March 31, 1980, 157 Cal. App. 3d 912, 204 Cal.
Rptr. 303 (1984), See also Case Notes, Arizona Law Review Journal, 213-36,
(1985); 240 Cal. Rptr. 215 (Cal. App. 2 Dist. 1987); Robert Reinhold, "Justices
Dismiss Suit Over Clergy," The New York Times, November 24, 1988, p. Al,
United State' v. Ballard 322 U.S. 78 No. 472 1944.
Magunson v. O'Dea, 75 Wash. 574, 135 P. 640 (1913).
State v. William's, 75 N.C. 134 (1876).
Whittaker v, Sanford, 110 Me. 77, 85 A. 399 (1912). For a discussion of religious
leaders' civil liability for intentional torts see "Comment, People V. Religious
Cults: Legal Guidelines for Criminal Activities, Tort Liability, and Parental
Remedies," 11 Suffolk U.L. Rev. torts see "Comment, People V. Religious Cults
Legal Guidelines for Criminal Activities, Tort Lial'ility, and Parental Remedies,"
11 Suffolk U.L. Rev. 1025, 1037-45 (1977).
Elements necessary for cause of action in a case of negligence are outlined by W.
Prosser and West Keeton, The Law of Torts, 164-65:
A duty, or obligation, recognized by the law, requiring the actor to
conform to a certain standard of conduct, for the protection of others against
A failure on his part to conform to the standard required. These two
elements go to make up what the courts usually call negligence; but the term
quite frequently is applied to the second alone. Thus, it may be said that the
defendant was negligent, but is not liable because he was under no duty to the
plaintiff not to be.
A reasonably close causal connection between the conduct and the
resultant injury. This is what is known as "legal cause", or "proximate cause."
Actual loss or damage resulting to the interests of another.
See Ericsson, "Clergyman Malpractice: Ramifications of a New Theory," 16 Val.
U.L. Rev. 163-64 (1981); Funston, "Made Out of Whole Cloth? A Constitutional
Analysis of the Clergy Malpractice Concept." 19 Cal. West L.R. 507-44 (1983)
9.403 U.S. 602 (1971).
See B. Bergman, "Is the Cloth Unraveling? A First Look at Clergy Malpractice
Concept." 9 San. Fern. V. L.R. (1981); Kimmerly Anne Klee, "Clergy
Malpractice: Bad News for the Good Samaritan or a Blessing in Disguise?" 17
V. of Toledo L.R. 209-53, (Fall 1985); Robert McMenamin 45 The Jurist 275-88
310 U.S. 296, 303-304 (1940).
240 Cal. Rptr. 215 (Cal. App. 2 Dist. 1987).
Robert Reinhold, "Justices Dismiss Suit Over Clergy," The New York Times,
Nov.24, 1988, p. A20.
See Chavot Yair quoted in Pit'chei Teshuvah, no.2, who extends devar mishnah
status to the decisions of Shulchan Aruch, Ramo, Sema, and Shach. See,
however, Baal Hamaor to Sanhedrin 33 who limits devar mishnah status to
talmudic decisions and categorizes all post-talmudic debate as shikul hadaat.
Rif to Sanhedrin 33a and Ramban in Milchamot Hashem suggest that the
exemption is due to the limitation of garmi responsibility to torts. They also
posit that judicial decisions are either gerama or that the requirement of a judge
to render a decision is ones (duress) which exempts him from liability.
Shach, no.5, rejects Ramo's ruling. Both Ramo and Shach hold that a judge, in
deciding a matter of Jewish law, fulfills his biblical resposibility (mitzvah). It is
this fulfillment, according to Ramo, which extends immunity to the rabbi who
errs in judgment. Shach holds, however, that if the rabbi errs ruling contrary
to Torah principles, he is not fulfilling a mitzvah and is, therefore, liable. For a
similar analysis relating to medical malpractice see Norman Lamm, "Tippul
Refui Im Yesh Bo Mitzvah" in Torah Shebe'al Peh, Mosad haRav Kook, 5744.
For an analysis oE the stumbling block prohibition see Mark Dratch, "The
Ethics of Selecting a Political Candidate," Journal of Halacha and Contemporary
Society, No. Xl, Spring 1986.
See Teshuvot haRashba, no.99; Darkei Moshe to Choshen Mish pat, no.386
Hil. Chovel uMazik 6:1; Choshen Mishpat 378:1
Bava Kamma 60a.
Gloss to Choshen Mishpat, no.386.
"Gerama and Garmi", Encyclopedia Judaica. VII, pp.430-3l. Albeck suggests
that the difference between these concepts is that of foreseeability, with gerami
referring to an indirect tort whose consequence is too remote to have been
foreseeable, and garmi referring to indirect acts, the results of which should
have been foreseeable. This distinction is not supported by Rava's definition of
geramo in Bava Kamma 60a, where he holds that the gerama exemption from
liability applies even if the fire was spread due to normal, foreseeable condition'
of a normal wind.
Rashbam to Bava Batra 94a, s.v. noten.
Tosafot, Bava Batra 22b, s.v. zot; Mordecai to Bava Kamma boa; Or Zarus,
Bava Kamma, chapter 2, no. 137; Teshuvot haRashba Ill, no. 107 and
Meyuchasot 240; Rosh to Bava Kamma, chap. 9 and Bava Batra, chap. 2, no. 17.
Rosh to Bava Kamma, chap. 9 and Bava Batra, chap. 2, no.17.
Ritsba in Tosafot, Bava Batra 22b, s.v. zot; Mordecai to Bava Kamma, no.119,
quoting Riva; Shach to Choshen Mishpat 386, no.
Bava Kamma 100a.
Ramban to Bava Kamma 117a; Rashba to Bava Kamma 117a; Maggid Mishnah,
Hil. Chovel uMazik 8:1 quoting R. Hai Gaon; Gaal haTerumot, gate 52, sec. 6;
Ravan to Bava Kamma, chap. 9; Teshuvot Masat Binyamin, no.28.
Tosafot, Bava Kamma 54a, s.v. chamor, Bava Kamma 71a, s.v. Vesavar, and
Ketubot 34a, s.v. savar; Ramban in Dma deGarmi quoting yesh omrim; Smag,
Positive Commandments, no.70; Mordecai to Bava Kamma, chap. 10, sec. 180
in the name of R. Avigdor; Teshuvot haRosh, no.100; Hagahot Maimoniyot to
Chovel uMazik 8:3; Shitah Mekubetzet to Bava Kamma 117b quoting R.
Yehonatan; Agudah to Bava Batra 22b; Shiltei Giborim to Bava Kamma 48;
Shach, Choshen Mishpat 386:1.386:1.
Ramban, Dma deGarmi; Ketzot Hachoshen 306:11; Gra to Yoreh Deah 306:16.
Or Zarua, Bava Kamma, chap. 9, quoting Rabbeinu Ephraim; Mordecai, Bava
Kamma, chap. 9, sec. 116; Ramban, Dma deGarmi; Yam shel Shiomo, sec. 24,
Shach, Choshen Mishpat 386, no.12. Or Zarua quotes R. YoeI who obligates
the money appraiser even when the counselee is not obliged to follow his
decision. See also Shiltei Gibborim.
Baal haMaor; Tosafot, s.v. ahcvei dinar; Mitchamot Hashem; Ramah.
HiL Sechirut 10:5
Bavo Kamma 26b.
Shulchan Aruch also records the money appraiser's case with the laws of
professional responsibility, Choshen Mishpat, sec. 306, and not in the chapter
dedicated to garmi, sec. 386. Like Rambam, he includes payment as a criterion